Feb 12, 2023
A much-needed close analysis of the actual records of old and new Supreme Court judges to counter all the sweeping certainty about who’ll do what. I have long felt that Justice Barrett, for example, was not nearly as one-dimensional as my friends on the left have claimed, and it’s nice to see some real data:
Justice Amy Coney Barrett’s tenure is the shortest of the three, so it’s harder to draw conclusions about her. When she first joined the court, her detractors predicted she would be a Catholic conservative activist, but she has not (at least yet) assumed that role.
She could have aligned herself with a school of thought called “common-good constitutionalism” — which includes, according to one of its leading proponents, the Harvard law professor Adrian Vermeule, “a candid willingness to ‘legislate morality.’” Instead she said she is “not a fan of common-good constitutionalism” in an interview last year.
Based on her record so far, Justice Barrett might be compared with Chief Justice William Rehnquist, in terms of her clean, straightforward writing style and her reluctance to opine on issues not presented by the case before her (reflected in her relatively low number of separate concurrences, where such opining most often takes place). And there have been other surprises. In 2020, Democratic politicians opposed to her nomination confidently predicted she would hold the Affordable Care Act unconstitutional if confirmed. She voted to uphold it.
Justice Barrett did not join Justice Thomas’s concurrence, which reiterated his view that the A.C.A. is unconstitutional but rejected this particular challenge on technical grounds, and she did not join the dissent of Justice Alito, who would have declared the law unenforceable. And in Fulton v. City of Philadelphia, she declined to call for overruling Employment Division v. Smith, a precedent that is deeply unpopular among religious conservatives — even writing a concurrence explaining the practical difficulties of overruling it.